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"270A (1) Schedule 4 (authorised bodies) is amended as follows.
(2) For "each of the designated judges" in each place substitute "the Lord Chief Justice".
(3) In paragraph (5) (advice of designated judges)
(a) in sub-paragraph (4), for "give such advice to the Secretary of State as he thinks fit" substitute "notify the Secretary of State whether he concurs with the application";
(b) after sub-paragraph (4) insert
"(5) If the Lord Chief Justice does not concur the Secretary of State shall not grant the application."
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(4) In paragraph (6) (decision by Secretary of State), in sub-paragraph (1) at beginning insert "If the Lord Chief Justice has concurred with the application and".
(5) In paragraph (6)(1), omit paragraph (c)."
The noble Lord said: My Lords, we seem to be a little short-handed at the moment, so I shall speak very slowly until a few more people come in.
Amendment No. 25 has been brought back from Committee. It amends Schedule 4 to the Courts and Legal Services Act 1990, as amended by the Access to Justice Act 1999 or, to be strictly accurate, it amends, not the whole of Schedule 4, but Part 1 of that schedule, because similar amendments would be needed to Parts 2, 3 and 4.
Under Schedule 4 to the 1990 Act, the Lord Chancellor has power to designate professional bodies whose members have rights of audience in the courts and the right to conduct litigation, and to revoke that designation. The Lord Chancellor has power to approve alterations of rules made by the designated bodies, and can impose rule changes on them. The Lord Chancellor must consult the heads of division but, unlike the situation between 1990 and 1999, there is no need for the heads of division in the courts of England and Wales to concur.
These are extremely extensive powers that relate to the independence of the legal profession, which is a matter of very great importance. Indeed, it is almost, although perhaps not quite, of equal importance to the independence of the judiciary because, plainly, an independent professional service, willing to act for people whose causes are popular or unpopular, and willing to act without fear of the consequences, is of the greatest importance in achieving a society that recognises and follows the rule of law.
The judicial concordat, which we discussed a good deal earlier today, provides that in relation to the judiciary a number of powers previously exercised by the Lord Chancellor on his own can only be exercised by the Lord Chancellor with the concurrence of the Lord Chief Justice. That is because, as a result of the Bill, the Lord Chancellor is seen more as a political figure and less as a judicial figure than was previously the case. It is therefore thought by the judiciary to be appropriate that there should be a double lock, and that forms part of the concordat. Of course, the concordat does not extend to the legal profession, as opposed to the judiciary, but it seems to us that the same principle should apply. We should have a similar double lock to ensure the continued independence of the legal profession.
This amendment provides for a double lock. It has the support of both the president of the Law Society and the chairman of the Bar Council. I believe that the appropriate keyholder of the second lock is the Lord Chief Justice. The Lord Chief Justice should be able to block the exercise by the Lord Chancellor of powers in the schedule if the Lord Chief Justice feels that the way in which the Lord Chancellor is proposing to exercise those powers is a threat to the independence of the legal profession.
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It is obvious that the powers given to the Lord Chancellor under this Bill are such that if we had a Lord Chancellor who was determined to undermine the independence of the legal professionand we certainly hope that that will never happenthe Bill, as it stands, would give the Lord Chancellor power to do just that. I beg to move.
Lord Kingsland: My Lords, I think I am right in saying that the mischief to which the noble Lord, Lord Goodhart, addresses himself was created by the Access to Justice Act 1999. Am I right about that?
Lord Goodhart: Yes, my Lords, it was indeed created by the Access to Justice Act 1999. We protested at the time, but the problem has become more acute because the Lord Chancellor is losing his judicial functions and becoming more of a political animal, if one can put it that way.
Lord Kingsland: My Lords, I now recall that in the course of that Bill's consideration, we united with the Liberal Democrats in an attempt to see off the attempt by the predecessor of the noble and learned Lord the Lord Chancellor to remove what, in effect, was a veto by the designated judges on the Lord Chancellor's ability to change the rules of the professions.
I wholly support what the noble Lord, Lord Goodhart, is seeking to do in this amendment. I think that it provides us with an opportunity to redress a wrong that was established in the 1999 Act and to ensure that the Lord Chief Justice has, as the noble Lord, Lord Goodhart, puts it, a second lock on any future initiative by the Lord Chancellor to change the rules of both professionsthe Bar and the solicitors. I feel sure that in the spirit of the separation of powers approach to this new legislation, the noble and learned Lord the Lord Chancellor will feel entirely at ease with this amendment.
Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Goodhart, puts the matter incredibly clearly, as ever. The arrangements set out in the amendment relate to the consideration of applications from a body to grant its members rights of audience or rights to conduct litigation or applications from organisations such as the Bar Council, the Law Society, or other similar organisations, for approval of changes to their qualification regulations or rules of conduct. It is very important, because the regulation of the legal profession in this respect is of considerable importance to the independence of the judiciary and, separately, to access to justice for individual members of the public.
The amendment of the noble Lord, Lord Goodhart, would reverse Parliament's decision in 1999 to place the determinative role for dealing with these applications with a Minister accountable to it. The amendment is not out of line with the concordat, but it is not in line with any specific provision in relation to it.
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Under the 1999 Act, the role that the Minister plays is quite complicated in the sense that it can be carried out only through a transparent statutory process, and he is under a duty to consult the Legal Services Consultative Panel, the Director General of Fair Training and each of the four designated senior judges. The panel and the OFT have a duty to publish their advice; the Minister has a duty to send their advice to the designated judges, and he makes his decision while balancing the advice that he receives from the panel, the OFT and the judges.
The objective that Parliament has given him is to make provision for new or better ways in which to provide legal services and a wider choice of person providing them, while maintaining the proper and efficient administration of justice. There is plainly an issue about the extent to which one wants either a Minister or the judges to have a complete lock on the issue, because there is an issue about how the public are best served, in relation to both the independent judiciary and the provision of legal services.
As noble Lords are aware, and as I said on 14 July, in July 2003 I announced a review of the framework of legal services regulation, which is being led by Sir David Clementi. I gave Sir David wide terms of reference and he is considering the whole regulatory framework and the roles and responsibilities within it. The consultation paper issued by his review team earlier this year asked questions about regulatory models and, specifically, about a regulator and the role of the judiciaryin particular, though not exclusively, the role of the Master of the Rolls, who has a particularly significant role in relation to the regulation of solicitors.
The noble Lord's amendment makes it clear that what is sought is to restore the judicial veto to ensure adequate protection for the legal professions so that their independence is upheld. There is an issue about the extent to which the judges want such a veto, as coming with such a veto is an obligation to be involved in a whole series of quite complex and detailed issues.
The role of the judiciary in the regulation of the legal professions is one of the factors that Sir David has been bearing in mind. He intends to publish his report in the week commencing 13 December. I suggest that it would be unwise to alter the existing arrangements until I have received and considered his report. It is extraordinarily unlikely that, having received his report in the week beginning next Monday, the Government would come to a conclusion before either the Third Reading of the Bill in this House or, probably, the completion of its passage through the Commons.
I suggest to the noble Lord, while understanding that the position of a new Lord Chancellor will be different from that of the old one, in the sense that the new Lord Chancellor would not be a judge as the old one was, that nevertheless it would be unwise to impose a judicial veto at this stage, when the issue of the regulation of the legal profession is under review by Sir David Clementi. I can give him the clearest possible
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undertaking that in exercising my powers under the 1999 arrangements, I shall exercise them with a view to ensuring that neither the independence of the judiciary nor access to justice is adversely affected. I hope that, in the light of that reassurance, the noble Lord will feel able to wait until Sir David's report and what the Government do in relation to it.
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